Executive Session

EXECUTIVE SESSION -- (Senate - January 25, 2006)

BREAK IN TRANSCRIPT

Mr. KENNEDY. Mr. President, I thank my friend and colleague, the Senator from Vermont. Again, we do many important things in the Judiciary Committee, but none are more important than the selection of our Supreme Court Justices. I again thank the Senator from Vermont for his leadership in ensuring we're going to have a fair, open, appropriate, and a prodding, probing hearing and for the leadership he provides for our committee on so many different matters of importance to the American people.

The stakes in this nomination could not be higher. This is the vote of a generation. If confirmed, Judge Alito will have enormous impact on our basic rights and liberties for decades to come. After all, the Supreme Court is the guardian of our most cherished rights and freedoms, and they are symbolized in the four eloquent words inscribed above the entrance of the Supreme Court of the United States:

``Equal justice under law.''

Those words are meant to guarantee our courts will be an independent check on abuses of power by the other two branches of Government. They are a commitment that our courts will always be a place where the poor and the powerless can stand on equal footing with the wealthy and the privileged.

Each of us in the Senate has a constitutional duty to ensure that anyone confirmed to the Court will uphold that clear ideal.

Contrary to what a number of my Republican colleagues have argued, the Senate's role is not limited to ensuring that the nominee is ethical and possesses a certain level of legal skill and professional experience. To end the inquiry there would be a shameful abdication of our historic responsibility. The selection of a Supreme Court Justice is of great importance to every man and woman in America because the decisions rendered by the Court affect their lives every day. Because of the enormous authority a successful nominee to the High Court will have for decades to come, it is the responsibility of the Senate to determine what constitutional values the nominee holds before he or she is confirmed.

Has the nominee learned the great lessons of our Nation's history? Will the nominee be fair and openminded or will his judgments be tainted by rigid ideology? Is he genuinely committed to the principles of equal justice under law?

The American people will have no second chance to decide whether this person should be trusted with such awesome responsibility. As their representatives, it is our responsibility to ask the tough questions and demand meaningful answers.

For the Senate to become a rubberstamp for the judicial nominees of any President would be a betrayal of our sworn duty to the American people. Taking our responsibility seriously and doing the job we were sent here to do is not being partisan, as some Republicans have charged. In fact, it is those Republicans who are being partisan by defending a nominee's right to remain silent when Senators ask him highly relevant questions about his constitutional values. To ask a nominee for a candid statement of his current belief about what a provision of the Constitution means is not asking for a guarantee of how he will rule in the future. It is every bit as appropriate as reading a Law Review article or a case he wrote last year or a speech he gave as a judge.

Unfortunately, on issue after issue, instead of answering candidly, Judge Alito merely recited the existing law but never disclosed his view of major constitutional issues. That is a disservice to the American people, and Senators on both sides of the aisle should find his evasiveness unacceptable. The confirmation process should not be reduced to a game of hide the ball. The stakes for our country are too high.

One of the most important of all responsibilities of the Supreme Court is to enforce constitutional limitations on Presidential power. A Justice must have the courage and the wisdom to speak truth to power, to tell even the President he has gone too far. Chief Justice John Marshall was that kind of Justice when he told President Jefferson he had exceeded his war-making powers under the Constitution. Justice Robert Jackson was that kind of Justice when he told President Truman he could not misuse the Korean war as an excuse to take over the Nation's steel mills. Chief Justice Warren Burger was that kind of Justice when he told President Nixon to turn over the White House tapes on Watergate. Justice Sandra Day O'Connor was that kind of Justice when she told President Bush that ``a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.''

We need that kind of Justice on the Court more than ever. It is our duty to ensure that only that kind of Justice is confirmed.

Today, we have a President who believes torture can be an acceptable practice despite laws and treaties that explicitly prohibit it. We have a President who claims the power to arrest American citizens on American soil and jail them for years without access to counsel or the courts. We have a President who claims he has the authority to spy on Americans without the court order required by law.

The record demonstrates we cannot count on Judge Alito to blow the whistle when the President is out of bounds. He is a longstanding advocate of expanding Executive power even at the expense of core individual liberties.

One thing is clear: Judge Alito's view of the balance of powers is inconsistent with the Supreme Court's historic role of enforcing constitutional limits on Presidential power.

His consistent advocacy of what he calls the gospel of the unitary executive is troubling. As Steven Calabresi, one of the originators of the unitary executive theory, has said, ``The practical consequence of this theory is dramatic: It renders unconstitutional independent agencies and counsels to the extent that they exercise discretionary executive power.''

But this bizarre theory goes much further. Its supporters concede that without the unitary executive as a foundation, the Bush administration cannot even hope to justify its constitutional abuses in the name of fighting terrorism.

Judge Alito refused to discuss his current view of the constitutional limits on Presidential power. But in a speech Judge Alito gave in 2004 to the Federalist Society, he stated that he believed ``the theory of the unitary executive best captures the meaning of the Constitution's text and structure.'' Under this radical view, all current independent agencies would be subject to the President's control. This would destroy the independence of agencies such as the Federal Election Commission, the Securities and Exchange Commission, the Consumer Product Safety Commission, and the Federal Reserve Board.

He strongly criticized the Supreme Court's ruling rejecting the theory of unitary executive and outlined a strategy for bypassing it.

When Judge Alito made that speech, he had already been serving as appellate judge for 10 years, and he was describing his own view of the Constitution.

Similarly, Judge Alito had written earlier that ``the President's understanding of a bill should be just as important as that of Congress,'' and that Presidents should issue signing statements announcing their own legal interpretations in the hope of influencing the way the courts would construe the law.

On Executive power, ``Protective of the Executive Branch, the issuance of interpretative signing statements would have two chief advantages. First, it would increase the power of the executive to shape the law.''

This is his view. But as Justice Hugo Black wrote in the steel seizure case, ``the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.''

This is not just a theoretical case. As we all now know, President Bush issued such signing statements on a bill that contained Senator McCain's ban on torture. In that statement, the President reserved the right to ignore the McCain requirements and even asserted that in certain circumstances his actions are beyond the reach of the courts.

I think many of us remember that meeting Senator McCain had with the President down in the White House, and the Senator from Arizona thanked the President for working out the language that would be included in the Defense appropriations bill and the President thanked him for his help and assistance in working that out. They both shook hands. This picture was on all three networks that night.

Four or five days later, the President signed the bill, and he issued an executive signing statement that said he continued to retain all of his constitutional power, and that he was effectively taking any question of his Executive power out of the hands of any courts in this country.

That is a complete reversal to what was agreed to, a complete reversal to what was said, a complete reversal to the understanding of the Senator from Arizona. The Senator from Arizona has spoken about it. That is Executive power.

We learned in high school there are two branches of Government, the House and the Senate. They pass the law, the President signs it. It is the law. If he vetoes it, it is not the law. That is not Judge Alito's view. He believes the President, by signing it, has an independent voice and that voice is a voice that should be listened to and heard, a very bizarre view of Executive authority and Executive power.

In cases involving claims of privacy and freedom from unjustified searches and seizures under the Bill of Rights, Judge Alito has consistently deferred to the Government at the expense of core individual rights. In the Doe v. Groody case, Judge Alito issued a dissent defending the strip search of a 10-year-old girl without authorization from a warrant. In his majority opinion, Michael Chertoff, former head of the criminal division in the Department of Justice, who is now President Bush's Secretary for Homeland Security, sharply criticized Judge Alito's view as threatening to turn the requirement of a search warrant into little more than a rubberstamp. This is not Democrats saying this; this is President Bush's Secretary of Homeland Security saying this. He was a judge on that circuit, criticizing this kind of action, extension of a search warrant, because of the inclusion of some kind of other document into the search warrant. We understand what Michael Chertoff was saying, and Judge Alito issued the dissent.

In Mellott v. Heemer, Judge Alito reported it was reasonable for marshals to pump a sawed-off shotgun at a family sitting in their living room. The family committed no crime. Seven marshals had detained and terrorized a family and friends, ransacked their home while carrying out an unresisted civil eviction. Yet Judge Alito's decision meant the family never got a trial before a jury of their peers.

Judge Alito's record in cases involving civil and individual rights shows a judge who repeatedly rules against individuals seeking justices for wrongs by the powerful. In Bray v. Marriott Hotels, a hotel worker claimed she was denied a promotion because she was an African American. The Third Circuit held she was entitled to a trial because the employer falsely stated she was unqualified and had evaluated her qualifications differently compared to White applicants. Judge Alito would have denied her the chance to prove her case. His colleagues on the court--not the Democrats on the committee--his colleagues on the court wrote that his dissent would have eviscerated key provisions of the landmark Civil Rights Act of 1964.

His record in other areas of civil rights is also troubling. In the case in which a disabled person sought physical access to a medical school under the Rehabilitation Act of 1973, the court's majority wrote that few, if any, Rehabilitation Act cases would survive if Judge Alito's view prevailed. That is the majority, not Members of the Democratic Party. That is the majority of the court members, looking at his view.

There it is--issues on race, issues on disability, individual rights and liberties, those individuals, farmers, and others in a home involving a civil action, who committed no crime, where marshals used gestapo-like tactics. They were denied an opportunity for a court to give a hearing. Judge Alito said no. That is why many Members wonder what kind of an opportunity the average American is going to have.

Does Judge Alito tip more to the powerful and the entrenched interests and the Executive authority? Does he give those individuals--women, minorities, disabled workers--a fair shake?

Judge Alito said, let's look at the record. We have looked at the record. We looked at primarily the dissents, as pointed out in the previous discussions.

Ruth Bader Ginsburg, who is considered to be a more progressive figure on the Court, Judge Bork, a conservative figure who was proposed for the court, agreed 91 percent of the time. It is in the dissent that we understand whether an individual and individual rights are protected. Those are the indicators. As we have seen from studies--not just from the members of the Judiciary Committee but by independent sources--Knight Ridder, Yale Law School Study Group, even the Washington Post, Cass Sunstein, a distinguished authority and thoughtful individual about constitutional law--all have reached a very similar conclusion that I have outlined here. We will hear on the other side: Well, they are only finding a few cases. We have suggested and included in the record of the Judiciary Committee this happens to be the prevailing position of the nominee.

In another case, a jury ruled a woman had provided enough evidence to show that she had wrongly lost her job because of sex discrimination. Ten members of the Third Circuit who heard the case on appeal agreed. Only Judge Alito argued that she had not provided adequate proof of discrimination. Who is out of step? Who is out of step? Who is out of the mainstream?

In the Riley v. Taylor case, Judge Alito dissented from a ruling prohibiting the removal of African-American jurors because of their race. It is unbelievable in today's America, in a case involving a minority defendant, that he was willing to ignore the overwhelming evidence that the Government insisted on an all-White jury for a Black defendant. He found no problem with that and with their inclusion for the death penalty. Eventually, that case was overturned, as it should have been. What was going on in the mind? We talk of equal justice under law. We see what has happened to individuals. We see what has happened in this extremely important judicial proceeding.

Many of Judge Alito's other decisions demonstrate a similar tendency against the individual. In Rouse v. Plantier, a group of diabetic inmates sued prison officials for being deliberately insensitive to medical needs. The trial court held there was enough evidence for the jury to decide whether the inmates' constitutional rights had been violated. Judge Alito refused to allow the jury to decide whether the Government was responsible for a broad systematic failure to provide the necessary medical group. These inmates had diabetes. We know the dangers of diabetes. One out of four of our Medicare dollars is spent on diabetes. One out of 10 of all health dollars is spent on diabetes. It can be devastating, leading to blindness, or the losing of a limb, more often the leg. They need attention and treatment.

This is a serious problem that is increasing in our society. There was a systematic failure in terms of providing for that. They thought it should go to the jury. Was it or was it not a factual issue? The lower court said they ought to be able to go, but not Judge Alito. He reached a different conclusion.

In case after case, Judge Alito's decisions demonstrate a systematic tilt toward powerful institutions and against individuals attempting to vindicate their rights. He cites instances where he has decided for the little guy, but they are few and far between. We have an independent duty to evaluate Supreme Court nominees to determine whether their confirmation is in the best interests of our Nation. That is the test. It is a test with which Judge Alito himself seems to agree. He said we should look at his record and decide whether he should be confirmed. I have done so. I have compared the challenges the Court will face in the future with Judge Alito's record and I cannot support his nomination.

In this new century, the Court will undoubtedly consider sweeping new claims to expand Executive power at the expense of core individual rights,

including detention of Americans on American soil without access to counsel or the court, and eavesdropping on Americans in violation of Federal law.

The Court will decide new issues in America's struggle against prejudice and discrimination. It must remain a fair and impartial decisionmaker for ordinary Americans seeking justice.

Justice Alito's record shows he should not be entrusted with these vital decisions facing our Nation's Court, and I urge my colleagues to join me in opposing Judge Alito's nomination.

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